SC judge who first wrote ‘separate is not equal’ lauded

In a little-known chapter of American history, a federal judge who was the son of a Confederate soldier and presided in the city where the Civil War began was the first judge in the nation to write that segregated schools are unequal schools since separate but equal became the law of the land.

U.S. District Judge Waites Waring's opinions in cases ranging from opening the South Carolina Democratic primary to blacks, to equal pay for teachers and school desegregation made him a pariah in his hometown in the segregated South. A cross was burned in his yard, bricks were thrown through his windows and he received death threats.

Eventually he left his hometown, moving to New York and never to return until he was buried in Charleston.

Largely forgotten in Charleston for decades, Waring is now being remembered for the role he played in school desegregation.

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A statue of Waring will be dedicated Friday at the federal courthouse where he heard his cases. And an historical marker about the Clarendon County case was recently placed outside the courthouse. Waring's 1951 dissent in a Clarendon County, S.C., case was largely followed by the U.S. Supreme Court in its landmark Brown vs. Board of Education outlawing segregated public schools.

The Brown ruling came after the appeal of the South Carolina case was combined with similar cases from Kansas, Delaware and the District of Columbia.

“You don't think of Brown vs. the Board as a South Carolina story but it really is,” said U.S. District Judge Richard Gergel, who is also a historian, plans to write a book about Waring and helped spearhead the effort to put up the statue.

Gergel noted Waring was the first judge since the U.S. Supreme Court 1896's decision in Plessey vs. Ferguson establishing separate but equal in race relations as the law of the land to write an opinion challenging the doctrine.

“It's been 55 years since Plessey and no judge has said anything like this,” Gergel told the AP in an interview. “Of all the judges in all the cases, only Waring said school segregation is per se inequality, which is what the U.S. Supreme Court said in Brown.”

In early rulings, Waring decided cases on separate but equal but his thinking evolved as time passed.

At the time of the Clarendon County case, South Carolina had separate schools for blacks and white, although the amount of money spent on the black schools was far less.

Waring wrote that beyond unequal facilities “segregation in education can never produce equality” and called it “an evil that must be eradicated.” The Clarendon County case, he wrote, demanded a “strike at the cause of the infection and not merely at the symptoms of the disease.”

When Waring and two other federal judges heard the Clarendon case in Charleston in 1951 – a case in which future Supreme Court Justice Thurgood Marshall argued for the plaintiffs – hundreds of blacks lined up outside the courthouse hoping to get seats, although there wasn't room for all.

“They had come there on pilgrimage,” Waring recalled in an interview at Columbia University some years later. “It's awfully heartening when you get poor, illiterate, ignorant people to suddenly sniff a little breath of freedom.”

Noted artist Jonathan Green, whose brightly colored paintings of blacks on the coastal sea islands are known worldwide, painted a picture of scene. It's being used on the program for the statue dedication and a print of the painting, which Green titled “A Breath of Freedom,” is being distributed to every high school in the state.

After writing his opinion, Waring received a prophetic letter thanking him from A.J. Clement Jr., who at the time headed the Charleston branch of the National Association for the Advancement of Colored People.

“Americans will thank God for you in the future and at some later date the South will raise a monument to you,” he wrote.